The obligation to give notice of defects is an important concept in commercial law and plays a central role in sales contracts between entrepreneurs. It obliges the buyer to report defects in the delivered goods within a certain period of time in order to protect his warranty rights. The obligation to give notice of defects serves to create legal certainty and protect the seller from late notification of defects.

Legal basis

The obligation to give notice of defects is regulated in German law in Section 377 of the German Commercial Code (HGB). This provision applies to mutual commercial transactions, i.e. transactions between merchants. The obligation to give notice of defects does not apply to the sale of consumer goods, as the focus here is on consumer protection.

Content and scope of the obligation to give notice of defects

The obligation to give notice of defects covers several aspects:

1. duty of inspection: The buyer must inspect the goods immediately after delivery, insofar as this is feasible in the ordinary course of business. This inspection must be so thorough that obvious defects can be detected.

2. obligation to notify: If a defect becomes apparent, the buyer must notify the seller immediately. “Immediately” in this context means “without culpable delay”. The exact deadline depends on the circumstances of the individual case, but is usually only a few days.

3. form of the complaint: The law does not prescribe a specific form for the notification of defects. For reasons of proof, however, a written complaint is recommended. The complaint must describe the defect as precisely as possible.

4. hidden defects: In the case of defects that were not recognizable during the inspection (hidden defects), the complaint period only begins with the discovery of the defect.

Consequences of a breach of the obligation to give notice of defects

If the buyer fails to give notice of defects in good time, the goods shall be deemed to have been approved. This has far-reaching consequences:

1. loss of warranty rights: The buyer loses his warranty rights such as subsequent performance, withdrawal, reduction or compensation.

2. payment obligation: The buyer must pay the full purchase price, even if the goods are defective.

3. reversal of the burden of proof: In the event of a late complaint, the buyer bears the burden of proof that the defect already existed at the time of transfer of risk.

Exceptions and restrictions

There are some exceptions and restrictions to the obligation to give notice of defects:

1. fraudulent intent on the part of the seller: If the seller has fraudulently concealed the defect, he cannot invoke a breach of the obligation to give notice of defects.

2. guarantee: In the case of a guarantee promise by the seller, the obligation to give notice of defects generally remains unaffected, unless the guarantee expressly provides otherwise.

3. deviating agreements: The parties may contractually modify the statutory obligation to give notice of defects, for example by extending the period for giving notice of defects.

Significance for practice

The obligation to give notice of defects has considerable practical significance for companies:

1. for buyers: Companies must establish internal processes to inspect incoming goods promptly and thoroughly and to report any defects immediately. This often requires close cooperation between incoming goods inspection, quality assurance and the purchasing department.

2. for sellers: Sellers benefit from the obligation to give notice of defects, as they have legal certainty after the expiry of the notice period. However, they should carefully check and document incoming complaints.

3. documentation: Both parties should carefully document the entire process of delivery, inspection and, if applicable, notification of defects in order to be able to provide evidence in the event of a dispute.

International aspects

In international trade, it should be noted that the obligation to give notice of defects may be regulated differently in different legal systems. For example, Articles 38 and 39 of the UN Convention on Contracts for the International Sale of Goods (CISG) contain similar provisions to the German Commercial Code, although they differ in some details.

Conclusion

The obligation to give notice of defects is an important instrument for creating legal certainty in commercial transactions. It presents buyers with the challenge of checking incoming goods carefully and promptly, but also offers protection against late notification of defects. It is essential for companies to be aware of the obligation to give notice of defects and to take it into account in their business processes in order to protect their rights and minimize risks.

In practice, it is advisable to establish clear internal guidelines and processes for incoming goods and quality control and to train employees regularly. In addition, companies should draft their contracts carefully and, if necessary, include provisions on the obligation to give notice of defects that meet their specific needs.